WHAT HAPPENS IF AN EMERGENCY ARISES BEFORE A PERSONAL REPRESENTATIVE IS APPOINTED?

William Sweeney

LETTERS OF SPECIAL ADMINISTRATION

Most probate cases follow a similar pattern. It generally takes four to six weeks from the time a petition for probate is filed until Letters can be issued to the personal representative. However, in some cases there are exigent emergencies that need to be dealt with immediately. If an emergency situation exists so that appointment is urgently needed before the Petition for Probate can be heard by the Probate Judge, you may file a separate Petition for Letters of Special Administration.

Letters of Special Administration are temporary Letters that can be approved by the Probate Judge for a specific purpose on an ex parte basis (without a hearing). This doesn't just mean that you think it's important but the Judge has to agree.

A Special Administrator is a temporary fiduciary appointed by the probate court to marshal and preserve the assets. This may happen in the case of a contested will, problems serving notice on interested parties, and other situations. A Special Administrator can be appointed whether or not there's a will.

A Special Administrator will be given general powers of a personal representative only in rare situations where a general personal representative cannot be appointed for a lengthy period of time (for example, because of a Will contest or litigation over who should be appointed as personal representative).

A Special Administrator is particularly useful if you are seeking to preserve the decedent's assets before a permanent administrator can be appointed or you are asking for a particular power (i.e. to represent the estate in civil litigation, to collect certain assets or manage a particular part of the decedent's estate). The decedent may own a business and a legal representative must be appointed to run the business and sign payroll checks. Letters of Special Administration could also be issued if the decedent sold real property and opened an escrow but died before the escrow was closed.

GENERAL PROCEDURE

A Petition for Letters of Special Administration will not be approved unless a Petition for Probate has also been filed. The Petition for Probate form should be used (Judicial Council Form DE-111), including an Attachment under Section 3.f.(3) specifying the reason why Letters of Special Administration are needed and the specific powers needed. These documents, along with the Duties and Liabilities of the Personal Representative, and the Confidential Supplement, will be filed in the Clerk's Office.

Allegations regarding the grounds for appointment of a Special Administrator must be added to the Petition for Probate (Judicial Council Form DE-111) as Attachment 3f(3). The Petition must allege and explain the urgency of the situation necessitating the appointment of a Special Administrator. The common wish simply to expedite proceedings is not sufficient grounds.

The law does not specifically enumerate grounds for appointment of a Special Administrator; some circumstances requiring the immediate appointment of a Special Administrator are the following:

  1. The person who is to be the representative may need evidence of authority to carry on the decedent's business or to gain possession of the residence or other assets;
  2. The sale of real property or securities initiated before decedent's death must be completed;
  3. A mortgage or other loan must be paid (if the lender will not defer action and there is no one to advance payment);
  4. It is necessary to respond to a default on a loan secured by real property;
  5. A limitation period may be about to expire, requiring that a claim or suit be filed immediately;
  6. There is a will contest and a lengthy delay is anticipated before settlement or trial;
  7. A potential heir or other person is attempting to take possession of an estate asset or to hide an estate asset;
  8. There is a delay in granting letters, e.g., when a sufficient bond is not filed, or the representative is suspended, is removed, or dies; or
  9. Livestock or other perishable goods may require taking immediate possession.

Special Administration is unique and each case is different. It's extremely important that an experienced probate attorney is utilized as there are a number of ways to customize a special administration request. If you wish to gain more information please contact me for a free consultation. I will spend time with you to answer your questions. From my office in Southern California, I represent families in all Southern California counties, including Imperial County, Los Angeles County, Orange County, San Bernardino County, San Diego County, others spread across the state and interested parties outside California.

To schedule a consultation, call me toll free at 800-575-9610 or locally at 760-989-4820. I enjoy meeting in person whenever possible, but am also available via Skype and email or through my online contact form.